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The Military Vaccine Mandate Has Been Overturned, But Unvaccinated Troops Still Risk Reprisal

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• The Biden administration has officially rescinded the military COVID-19 vaccination mandate, but ongoing litigation will continue and unvaccinated servicemembers may still be subject to discipline and discharge, experts explained to the Daily Caller News Foundation.
• The Pentagon has 30 days to determine how to implement the mandate repeal.
• “There’s nothing to repair what’s already happened. There’s nothing to address the improper handling of medical exemptions, the violations for Religious Freedom Restoration Act and what the future looks like,” R. Davis Younts, a military defense attorney, told the DCNF.

While the Biden administration has officially reversed the military COVID-19 vaccination mandate, servicemembers who escaped discharge for refusing the vaccine still risk retaliation and could be booted anyway, experts told the Daily Caller News Foundation.

Ongoing class action lawsuits thwarted the military’s efforts to discharge thousands of troops who objected to the mandate before the 2023 National Defense Authorization Act, which President Joe Biden signed into law Friday, overturned it. However, servicemembers may risk reprisal even after the deadline passes for the Department of Defense (DOD) to implement the repeal, staining the records of thousands of servicemembers for the remainder of their careers, experts explained to the DCNF.

“There’s nothing to repair what’s already happened. There’s nothing to address the improper handling of medical exemptions, the violations for Religious Freedom Restoration Act and what the future looks like, whether it’s for religious reasons or other reasons,” R. Davis Younts, a military defense attorney, told the DCNF.

Potentially thousands of unvaccinated servicemembers — those denied medical or religious exemptions or wanted to challenge the order — were issued formal letters of reprimand, Younts said, including seven of his own clients. A permanently filed reprimand can suppress opportunities for members of the armed forces to reenlist or be promoted, and may constitute a basis for discharge.

Since the DOD acted within its jurisdiction in implementing the mandate, members censured for refusing the vaccine will not likely have adverse reports rescinded, Dwight Stirling, CEO of the Center for Law and Military Policy, told the DCNF. “Those reprimands were legally correct under the prior regime and nothing about what Congress did in the NDAA changes that fact,” he added.

Roughly 8,400 active duty servicemembers have been removed for refusing vaccine orders, according to the latest DOD data shared with the DCNF. The Army tallied a 97% vaccination rate as of Dec. 16, but roughly 9,000 soldiers remain unvaccinated.

“I would expect the military leadership to stop trying to remove service members for refusing the vaccine from this point on,” Stirling said. “The policy is no different than it was prior to passage of the NDAA,” he continued.

“The revocation of the vaccine mandate improves overall readiness, retention and recruiting, but the damage has been done,” Republican Rep. Mike Garcia of California told the DCNF in a statement.

Servicemembers alleging religious discrimination for their commanders’ failures to properly consider religious exemption requests took the mandate to court after it came into force in August 2021. By the end of the mandate, these class action lawsuits had subjected every service but the Army to a permanent legal block on issuing further discharges.

“Those cases will continue to wind through the judicial system until fully resolved,” Stirling told the DCNF.

Prior to the vaccine mandate’s enforcement, commanders restricted some unvaccinated servicemembers to base, preventing them from deploying and take other steps necessary to climb the chain of command and further their military careers, Younts explained. For example, even though the Navy came under a legal injunction from discharging unvaccinated sailors in March, the court ruled that the department could still block those sailors from deploying.

In the Army, soldiers considered non-deployable can be subject to discharge after one year, Younts explained. While the Army can no longer boot someone for not taking the COVID-19 vaccine, it could issue a policy banning unvaccinated members from deploying, which could lead to a soldier’s discharge.

“Are they going to be able to promote? Are they going to be able to hold command positions? Are they going to be able to deploy? Are they going to face some kind of coercion that people did before the mandate was even in place?” Younts asked.

“The repeal prevents any adverse action being taken from this point on against unvaccinated service members,” Stirling countered. While under prior policy those members could be considered non-deployable, overturning the mandate “completely changes this dynamic,” he continued, saying there should no longer be any meaningful distinction in treatment of vaccinated and unvaccinated troops.

Now that the military’s COVID-19 vaccine mandate is ending, I hope @SecDef gives careful consideration to this letter we sent today urging the Pentagon to freeze all COVID-19 vaccine-related discharges and start undoing the harm caused by this misguided policy. pic.twitter.com/uXmwOhmi62

— Senator Ron Johnson (@SenRonJohnson) December 17, 2022

The military vaccine mandate has been the subject of strong debate between the DOD, which asserts that full vaccination status is critical to ensuring the readiness of the force, and Republican lawmakers, many of whom argue that the mandate has exacerbated an ongoing recruiting crisis.

“Secretary Austin supports maintaining the vaccine mandate. The health and readiness of our forces is critical to our warfighting capability and a top priority,” Pentagon spokesman Brig. Gen. Pat Ryder told the DCNF in a statement earlier in December.

The NDAA allows the DOD 30 days to work out how to roll back the mandate. The department is “currently in the process of developing further guidance,” DOD spokesperson Lt. Col. Garron Garn told the DCNF.

“We have no idea” what the DOD’s policy will be moving forward, Younts told the DCNF.